MICHELLE FIGURA AND MATTHEW FIGURA PLAINTIFFS RESPONDENTS v. AND ZAYACHEK MECHANICAL LTD DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion of defendant Zayachek Mechanical, Ltd. is granted, and the complaint and all cross claims against that defendant are dismissed.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries Michelle M. Figura (plaintiff) allegedly sustained when her vehicle was rear-ended by a vehicle owned and operated by defendant Timothy W. Frasier, who was employed by Zayachek Mechanical, Ltd. (defendant).  According to plaintiffs, Frasier was acting within the scope of his employment at the time of the collision, and defendant is therefore vicariously liable for Frasier's alleged negligence based on the doctrine of respondeat superior.  Defendant moved for summary judgment dismissing the complaint and all cross claims against it on the ground that Frasier was not acting within the scope of his employment at the time of the accident.  We conclude that Supreme Court erred in denying the motion.

“Under the doctrine of respondeat superior, an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his [or her] employment ․ As a general rule, an employee driving to and from work is not acting in the scope of his [or her] employment ․ Although such activity is work motivated, the element of control is lacking” (Lundberg v. State of New York, 25 N.Y.2d 467, 470–471, rearg. denied 26 N.Y.2d 883;  see Swierczynski v. O'Neill [appeal No. 2], 41 AD3d 1145, 1146–1147, lv denied 9 NY3d 812;  see also D'Amico v. Christie, 71 N.Y.2d 76, 88).  “Although the issue whether an employee is acting within the scope of his or her employment generally is one of fact, it may be decided as a matter of law in a case such as this, in which the relevant facts are undisputed” (Carlson v. Porter [appeal No. 2], 53 AD3d 1129, 1131, lv denied 11 NY3d 708).

Here, defendant established that Frasier was driving his “personally owned motor vehicle” from his temporary residence to his work site (Pugsley v. Seneca Foods Corp., 145 A.D.2d 953, 953;  see Correa v. Baptiste, 303 A.D.2d 355, 355), that he was not compensated for his commute (see Rapini v. Geneva Gen. Hosp., 233 A.D.2d 868, 868–869), and that he was not “subject to control in how he chose to convey himself” to work (Tortora v. LaVoy, 54 A.D.2d 1036, 1037;  see Matos v. Depalma Enters., 160 A.D.2d 1163, 1164).  Defendant thus established that it was not exercising any control over Frasier at the time of the accident (see Lundberg, 25 N.Y.2d at 470–471;  cf.  Makoske v. Lombardy, 47 A.D.2d 284, 287–288, affd 39 N.Y.2d 773).

We conclude that plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).  Contrary to plaintiffs' contention, the mere fact that Frasier carried his own tools in his vehicle was insufficient to “transform the use of the automobile into a special errand [for defendant] or an extension of the employment” (Matter of Freebern v. North Rockland CDA., 64 A.D.2d 300, 303;  cf.  Clark v. Hoff Bros. Refuse Corp., 72 A.D.2d 936, 937;  Shauntz v. Schwegler Bros., Inc., 259 App.Div. 446, 450;  see generally Matter of Trent, 20 A.D.2d 948, 948–949).  Moreover, the fact that Frasier drove a coworker to work that morning is of no significance because he was not directed to do so, and the carpool was based on the employees' “personal arrangement” (Jacobi v. Fish, 67 AD3d 1376, 1377;  see Howard v. Hilton, 244 A.D.2d 912, 913, lv denied 91 N.Y.2d 809;  cf.  Makoske, 47 A.D.2d at 287–288).  Finally, the fact that defendant paid for lodging for Frasier while he was at a remote work site also does not require a different finding inasmuch as defendant did not require its employees to stay at the procured hotel, and the employees did not have “to inform defendant of their whereabouts [outside of working hours]” (Crawford v. Westcott Steel Co., 188 A.D.2d 731, 732).  We therefore conclude that Frasier was not engaged in employment-related travel at the time of the accident, and thus plaintiffs' reliance on the dual purpose doctrine is misplaced (see Swierczynski, 41 AD3d at 1147;  cf.  Margolis v. Volkswagen of Am., Inc., 77 AD3d 1317, 1319).  We further conclude that plaintiffs failed to raise a triable issue of fact whether defendant “ha[d] some special interest or derive[d] some special benefit from [Frasier's] use of [his personal] automobile in going to and from work” (Fitzgerald v. Lyons, 39 A.D.2d 473, 475;  see Ehlenfield v. State of New York, 62 A.D.2d 1151, 1152, lv denied 44 N.Y.2d 649).

Although plaintiffs submitted evidence that Frasier informed his insurance company that he “was out of town working at the time of the accident,” that statement, alone, does not raise a triable issue of fact inasmuch as “[i]t is the employer and not the employee who must establish the scope of the employee's employment activities ․ [T]his is not controlled by the employee's belief[s]” (Matter of Tally v. Newberry Co., 30 A.D.2d 898, 899, affd 25 N.Y.2d 945).

Frances E. Cafarell

Clerk of the Court